Ethnic schizophrenia as a constitutional idea

The Committee of Experts, and every constitutional conference that pursued a balkanisation policy when it comes to devolution of political power, is to blame for the mess we find ourselves in today. Kenya is a nation in name only; in reality, it is a patchwork of ethnic fiefdoms that occasionally unite to do something worthwhile, like cheer for Kenya's world-beating long distance runners. The violence witnessed in Homa Bay on the 16th August, 2026, is a feature, not a bug, of a politics founded on balkanisation rather than unity.

Kenya's politicians operate in a world whose political principles are logical at face value. The country is divided into 47 ethnic fiefdoms therefore, the politics of the country is a contest to build a coalition of ethnic kingpins to take over the national government. Quod erat demonstrandum. What if this received wisdom is wrong?

I am a child of Baby Boomers and I came of age in Nairobi's Eastlands in the 1980s. My brothers and I were among the first cohorts of the 8-4-4 system that prioritised, among other things, a melting pot approach to ethnic harmony. The primary and secondary schools we attended, a provincial one for me and a national one for the pair of family geniuses, were never dominated by learners from one ethnic community. For us, the children we played with and the parents who saw to our care and protection came from diverse ethnic and socio-economic backgrounds. I believe that had this philosophy been translated into the design of the post-2010 constitutional order, the violence we witnessed in Homa Bay might have been avoided.

The divide-and-rule tactics of the British colonial authorities were adopted almost in toto by Independent Kenya, with Old Jomo presiding over the establishment of ethnic fiefdoms that have proven surprisingly resilient. So it is interesting to consider the half-measures adopted by Baba Moi in the 1980s with 8-4-4 to establish a more ethno-neutral system that was eventually abandoned in the wake of the repeal of Section 2A of the former Constitution. Had the post-2002 constitutional reforms taken a chance on an ethno-neutral devolution system, we would not be debating the virtues or vices of the political leadership of any county on the basis of their ethnic identity as we are today.

It is now taken for granted that "the face of Kenya" means not only a geographical balancing act but also the application of an ethnic weight to any appointment to a public institution. Michaela Wrong's "Our Turn to Eat" only hinted at the problem; in the decades since she wrote her book, "eating" is measured by how many of the members of your ethnic community have their noses in the trough of public money or how many of them have been awarded public tenders (for which they have no intention of delivering anything other than hot air). This has become such a central part of the organisation of Government that have an entire statutory commission undertaking periodic "audits" to measure how many members of an ethnic community are to be found in a public institution.

But nothing demonstrates our national commitment to the politics of ethnicism than the creation of 46 counties (Nairobi City doesn't count) that are, in effect, established around boundaries that segregate whole populations on the basis of their ethno-linguistic identity. Whenever the question of "development" comes up in the context of devolution, it is tinged with implicit and explicit connections to the ethno-linguistic identities of the protagonists and antagonists dealing with the question. We seem to have accepted this state of affairs by maintaining an active level of national bickering to promote the interests of "our people" whenever cabinet positions and other senior offices in the public service are dished out.

We have accepted as an immutable fact that ethno-linguistic organisation of government is here to stay, protected by the Constitution, and enforced by laws that say one thing and do the exact opposite like the National Integration and Cohesion Act, under which the National Integration and Cohesion Commission spends billions every year to measure how many members of each officially recognised ethnic community are represented in each national government entity - while conveniently ignoring the ethnic composition of the 46 county governments that are almost entirely made up of single ethnic blocs. We claim to be a nation. In actual fact, we are a bunch of ethnic fiefdoms wedded together by a desire to swindle each other in the name of regional balancing.

The Constitution of mta-do

It is a strange thing for a foreigner - even a billionaire foreigner - to wander onto a press conference in Kenya and threaten Kenyans for challenging a project that the foreigner is fronting on Kenyan soil. Yet, in 2026, in front of a live audience, Africa's richest man said he was going to cause "headaches" to any Kenyan who dared to challenge his multibillion shillings oil refinery. The is where we are today: letting foreigners and their money dictate terms to us.

Kenya is a schizophrenic place. Article 42 of the Constitution states that every person has the right to a clean and healthy environment and that this includes protecting the environment for the benefit of present and future generations. Save for the spectacularly and wilfully naive among us, nothing poses such a significant risk to the environment as the oil and gas industry and so it is entirely consistent with the rights every single Kenyan enjoys that, among other things, environmental considerations have played centre stage in the objections to the Lamu oil refinery project.

Kenyans are not foolish people no matter how much we try and paint them as such. We are acutely aware of the economic benefits that a new oil refinery will bring. It is not just jobs. Thousands of workers will need millions of calories of food, and tens of millions of litres of water, milk, and beverages. Bars, hotels, boarding and lodgings, and AirBnBs will make a killing. Suppliers of all sorts of goods and services are assured of a dedicated market. Kenyans are not foolish people.

But it has been many moons since the Rio Conference of 1992 when many of the global principles of sound environmental management were adopted. The oil and gas sector is especially notorious for its deleterious environmental effects. Lamb, the county, is a massive place, relatively sparsely populated, but left no one try and pull the wool over your eyes that the refinery will be in some remote place or its environmental impacts will be negligible. Air, water and soil quality for thousands of square kilometres around the site will be affected and it is up to the Government that has fast-tracked this project to ensure that the economic benefits of the refinery do not come at the cost of the environment.

Article 10 is very big on national values and principles of governance, including pesky values and princes like transparency, which is often taken to mean that the Government will not hide material facts from the people. In Kenya, transparency, according to some, is both a shield and sword: it protects the people from harm but also arms the people with information that they can use to undermine a project. The effect, more often than not, has been ever greater effort by the Government to conceal material facts about "sensitive" projects even as they publicly and loudly announce them in the name of the people. Like I said, Kenya is a schizophrenic place.

What kittle I have been able to observe of Singapore, and the relationship between its government and Singaporeans, is that where there is a high degree of confidence and trust in the state, the institutions of the state and the officers of the state, much can be achieved and conflict that it likely to harm a harmonious relation is mostly easily mitigated because of that confidence and trust. No one will gainsay that there are very few Kenyans who have a high degree of confidence or trust in their government, and that this has engendered suspicion, which in turn foments conflict whenever the Government announces or embarks on a grand project, such as the Lamb refinery.

Efforts at confidence building between the Government and the people always flounder because it they tend to be haphazardly executed and quite often sabotaged from within. There is a hard core at the heart of the Government that thrives in the chaos fomented by the conflict with the people; you have seen them drive into their public offices in Range-Rovers that cost more than the budgets of the departments they head or live in swanky neighbourhoods that would take them several civil service lifetimes to afford. So too in the suspicion swirling around the Lamu refinery, there are public officials (and their private benefactors) who will make a killing ensuring that the conflict over the refinery is never resolved.

One of the reasons why it is easy to foment conflict is, ironically, the Constitution. It is a wickedly complex document, attempting to square so many circles it is a wonder anyone makes any kind of sense from it at all. For example, Chapter Five, which is directly related to the Lamu refinery project because it involves land, does not easily set out what connects all the threads flowing through it. You would think that the link between Article 40 that protects your right to property and Chapter Five was clear - until you read that when it comes to individual rights to property, they extend only to the surface and even then, subject to the State's power to compulsorily confiscate the property "in the public interest". This tension is to be found even in the Bill of Rights itself.

In the sixteen years of litigation by "human rights defenders" and other organisations funded by foreign powers, much confusion has been sowed as to what the Constitution means to the people it is suppose to weld into a nation. The current litigation over the Lamu refinery is part of that Kenyan constitutional tradition of pretending to act in the name of the people  while, in actual fact, ensuring that the people will spend so much time affirming and reaffirming constitutional rights and freedoms they may never get the opportunity to actually enjoy them - all the while, the implementation of the Constitution remains a tug-of-war between the various factions in the Government. It is how, instead of Kenyans setting the tone on how their land, their natural resources, and their Government will relate with a foreign businessman, it is that businessman who is comfortably setting the terms - a mta-do attitude that Kenyans seem incapable of slapping down.

The trouble with the word "goon"

The Cambridge Dictionary defines "goon" as a violent criminal who is paid to hurt or threaten people. It does not define goonism because as we know, an -ism is a set of beliefs. Violent crimes committed for hire are not a set of beliefs; they are actions punishable under law. So it is interesting to see how invested Kenyans are in defining violent crimes-for-hire as a belief system by insisting on calling them "goonism".

There isn't a Kenyan general election since 1992 that was not accompanied by violence. The 1992, 1997 and 2007 general elections were the most violent, but that does not hide the fact that the 2002, 2013, 2017 and 2022 general elections were not violent as well. What is becoming more and more commonplace is that the electoral violence is almost exclusively related to the presidential election. It is rare to hear the supporters of county assembly election candidates waging violent running battles in the streets these days, though the potential is always there.

What is also changing is that presidential election candidates understand the high risks hiring militia has become. In 1992, 1997 and 2007, the violent crimes were committed by gangs armed with what the Kenyan news media describe as "crude weapons". Today, the risks of militia being armed with small arms and light weapons - firearms like sidearm and rifles - no one wants to pay for a violent armed militia that can turn on you after the election when you inevitably fail to keep your end of the bargain. Just think of the violent extra-judicial campaign Mwai Kibaki's government waged against the Mungiki militia after the 2002 general election.

Since at lest June 2024, Kenyan politicians have hired goons to commit acts of violence against their rivals and the supporters of their rivals. In 2025 and 2026, during the 2024 anti-Budget protests and the anniversary of the protests in 2025, armed motorcycle gangs were allegedly hired to violently attack the so-called Gen Z protestors. Some have whispered darkly that 2024, 2025 and 2026 were incubators for different forms of goons-for-hire activities, seeing which ones would keep protestors down without spiralling out of control.

These violent criminal offenders must be distinguished from peaceable demonstrators participating in a public assembly that has turned riotous to quote section 81 of the Penal Code. So far, even the Government admits that the demonstrations are usually peaceable in nature until hired goons infiltrate the assemblies and incite a riot, sometimes against the demonstrators and sometimes against the public and sometimes against institutions of the Government. Who hires the goons remains hotly contested though names of county governors and principal secretaries are consistently associated with the criminal offenders. These allegations are yet to be tested fully during a criminal trial.

We should not be willing to participate in any public discourse that camouflages the violent offences that are being committed against the people participating in legitimate political activities whether those activities are political and election campaign rallies or demonstrations against the Government, Government officials, Government policies or pro-Government political candidates. "Goon" and "goonism" is an attempt to hide the fact that there is at least one person who has hired violent criminal offenders to commit acts of violence against political rivals - and has gotten away with his crimes. If we are to learn any lessons from the crimes committed by armed militia in 1992, 1997 and 2007, it is to describe the offences for what they are - not hide those crimes behind goofy-sounding English.

Can we make radically honest choices in 2027?

A person is qualified to be elected as the president of Kenya if that person is qualified to be elected as a member of Parliament. The word "qualified" here is misleading. What it should say is that a person is eligible to be elected as president if that person is eligible to be elected as an MP. When we think of qualifications, we almost always think of academic and professional credentials and professional or work-related experience.

I say all this to revise my previous positions on who is qualified and who isn't qualified to be president of Kenya. This is a job unlike any other in leadership and there is no blueprint for who will be a good president and who will not. Regardless of what boosters and naysayers will say, Kenyan presidents have not been all bad or all good; they have done the job on the basis of their experience, knowledge and the circumstances of the day. There is no check-list that we can apply to say that if they had these qualifications, then they would have done a better job than the job they eventually did.

So there is no way to determine whether Judge Maraga, Senator Sifuna or any of the other ambitious politicians will make a good or bad president. We can only hope that they will be good presidents. However, based on what they have done, and how they have behaved, and how they have comported themselves, in the offices they have occupied (or continue to occupy), we can make informed decisions about whether or not to cast a ballot in their favour if they are ever included in the presidential ballot at the next general election.

Judge Maraga, to the best of my knowledge, had a largely blameless tenure as a judge, as the second President of the Supreme Court and the 14th Chief Justice of Kenya. Senator Sifuna, despite being elected to the largely ineffectual Senate of Kenya, has done a good job of being senator and only the wickedly uncharitable think he has been bad at the job. Also, as an official of the ODM Party, he ran an efficient political party machinery and if it wasn't for the succession fiasco after the death of his party leader, he seemed set to serve as secretary-general until at least the general election. On those grounds alone, they are eminently qualified. However, nothing they have done in the previous jobs is any sort of guarantee that they will be good presidents or any sort of prediction that they will be bad presidents.

Presidential candidates can do much to build confidence in their candidacies. They can surround themselves with competent men and women. They can build party and political infrastructure to communicate their political visions and ideas. They can respond to political events with a view to solidifying their political powers. They can avoid scandals or, when scandals inevitable find them, take decisive action that paints them in a positive light. They can eschew tribal mathematics and promote inclusivity and nationhood. There are dozens upon dozens of decisions and choices they can make to demonstrate the kind of political leaders they are and if they do a good enough job of it, the voters may choose them over their rivals.

But as Kenya has found out, since at least the Kibaki presidential election, campaign talk is cheap. The speed with which Kibaki's politics became a byword for tribalism and corruption is sometimes shocking to see in retrospect. His presidential campaign engendered great confidence in the Opposition. He was surrounded by stalwarts of the Second Liberation, despite one or two very bad applies (Mr. John Michuki readily comes to mind). No one thought that his Cabinet would descend so swiftly into Kanu-style tribalism and corruption (A minister saying "go slow" over the Anglo-Leasing Scandals remains jarring even today). This would culminate in the worst political violence in a decade, leaving hundreds dead and tens of thousands displaced from their homes. How he governed as president could not be deciphered from his credentials but could, perhaps, have been predictable from his political history, especially his political history between 1988 and 1992.

So even as we are bombarded by billions of clickable AI slop about the virtues of the 2027 candidates, we should maintain a healthy scepticism about the men and women selling their political agendas to us. Not everything they promise will be done. Not every accusation levelled against them is true. We should, instead, reflect on what our true values and principles, as individual voters, actually are. If we are content with sharp practices and unethical conduct, then it doesn't matter whom we elect in 2027. But if we still believe in the values and principles that were instilled in us when we were children - honesty, hard work, diligence and perseverance - then we should make radically honest choices in 2027, even if it means that tribal satraps and their coteries end up behind bars.

The briefcase Maraga bought

It never occurred to me that Judge Maraga's political campaign would be roiled by a sex harassment scandal in which he did not sexually harass anyone. But here we are.

When Judge Maraga announced his intention to seek the Kenyan presidency, few thought that he had a realistic plan. He was not, and doesn't seem to have become, a politician. His only claim to fame was that he had served as Kenya's second chief justice under the 2010 constitution, had presided over a presidential election petition that had annulled a presidential election, and had written to the president directing him to dissolve parliament for failing to give effect to the two-thirds gender rule of the constitution.

His putative presidential campaign started off with visits to court rooms where young Kenyans were being prosecuted, frequently on trumped up charges, or Gen Z rallies where the only notable thing about the rallies was that Judge Maraga chose to attend. His campaign team, staffed by young people and at least one failed politician, was notable for its lack of experience. In the end, Judge Maraga chose not to set up his own political party and instead chose to hitch his wagon to the United Green Party.

The current allegations against Judge Maraga's leadership point to a presidential candidate who still thinks he is in the exploratory stage. His accusers seem o have a had a personal relationship with him and seem to have expected. that the personal relationship would lend weight to their allegations against Judge Maraga's associates whom they accuse of sexual offences.

Only one of the accusers has chosen to reveal her identity, though whose she accuses and what the accusation is remain unsaid. She was at the forefront of the 2024 anti-Finance-Bill protests that ended up in widespread violence at which dozens of Kenyans were killed by police and forced the government to capitulate and withdraw the proposed changes to the tax laws. She would be considered a member of the Gen Z movement and her public profile seemed to be on the rise when she joined Judge Maraga's exploratory committee.

From the initial social media posts by the young people championing Judge Maraga's presidential candidacy, one got the sense that there was a conflation of the professional and personal, and the blurring of lines seemed to have been widespread. The political inexperience of all concerned was apparent. If it was not a sexual harassment scandal, it would be something else that roiled the campaign.

The United Green Party is not known to be a mass movement party by any measure. It has no elated parliamentarians, or other elected officials holding state offices. It does not even appear to have party offices at the grassroots. Barring his occasional appearances at rallies and whatnot, Judge Maraga does not appear to be interested in the presidency. He only seems to be more interested in saying that he intends to stand in the presidential election in 2027.

And the fact that victims of sexual offences within his party are receiving the "go see the HR manager" line, it doesn't even appear like he is interested in building up the internal infrastructure of his political party to help him secure victory at the presidential election. Worse still, he does not appear to have a slate of potential candidates who wish to stand in the elections to parliament, county assemblies or governors' offices. In short, he appears to have bought himself a briefcase and nothing more.

School tragedies won't end

 I - It is not a question of expertise, is it?

I am not an expert on education. I am not an expert on physical and land use planning. I am not a parent. However, seeing this, maybe I know a thing about laws.

School tragedies are shockingly commonplace in Kenya. Regardless of whether they are supported out of our taxes or private, national or ho-hum, well performing or at the bottom of the exam rankings, tragedies strike them all without discrimination. It has nothing to do with how wealthy or poor Kenya is, tragedy will find a school.

II - The thing about systems

Schools, like so much else in Kenya, exist and operate in a system. The system is broken. It has been broken for decades. We know the ways it is broken. Crucially, those who know better, know how to fix that which is broken. But equally crucially, those with the power to do anything about it don’t. More often than not, it all boils down to money. Specifically, tax shillings, collected and spent by the government.

The only governments we believed we had a say in how they came about, whom they appointed to high office, and which we thought represented our aspirations as a people are Mwai Kibaki’s, Uhuru Kenyatta’s and William Ruto’s. Daniel Moi’s and Jomo Kenyatta’s governments were renown for the extremes they went to suppress the aspirations of the people. We even called them “imperial presidencies” in recognition of how they treated the people: as subjects, rather than citizens.

III - Hopes, dashed

But in 2002, Kenyans voted overwhelmingly to cast aside presidential imperialism. In 2010, Kenyans voted again overwhelmingly to cast aside constitutional imperialism. And in 2013, knowing what we knew, elected the first government under a new freedom-espousing constitutional order, repeating the feat again in 2022.

So far, the only difference between the Jomo/Moi era and the Kibaki/Uhuru/Ruto era is the slick PR machine that springs into action to pull the wool over our eyes whenever our children are maimed and killed in school tragedies. In my opinion, in order to safeguard the lives and welfare of our children, then we must be prepared to rend asunder the national economic compact that says it is better to wastefully spend billions on roads for corrupt UN fat cats instead of the necessary infrastructure to properly and adequately educate our children in safety and security.

IV - The money we have, the money we waste

The Appropriation Act, a constitutional requirement under Article 221 of the Constitution, is the most important tool in directing how we spend the taxes we collect. All the mealy-mouthed excused about World Bank/IMF conditionalities and repayments of loans are just that - excuses. If we want to spend public funds to educate our children in safety and security, then we must take a hatchet to all the wastefulness contained in the annual Appropriation Act. So long as this not done, no amount of handwringing by the political classes will ever provide the necessary resources. And tragedies will follow. To paraphrase the devolution windbags - lack of money follows tragedy

History as farce, history as tragedy

In 2020, when it became apparent that the Government would not chart an independent path in dealing with the spread of the Covid 19 virus, a decision was made to revoke and replace the Petroleum Development Levy Fund Order of 1992 (Legal Notice No. 10 of 1992). What replaced it, the Petroleum Development Levy Fund Order of 2020 (Legal Notice No. 124 of 2020) created the “fuel subsidy” that came to bedevil the Government’s finances.

Paragraph 5 of the new Order stated:

5. 5. The levy shall also be used for matters relating to the development of the oil industry including to stabilize local petroleum pump prices in instances of spikes occasioned by high landed costs above a threshold determined by the Authority. The Cabinet Secretary may by writing to the administrator, request for a draw down from the Petroleum Development Fund to stabilize local petroleum pump prices where he deems it necessary.

It would be instructive to remind ourselves what the purpose of the Petroleum Development Fund Act was. Section 4(4) of the Act states:

(4) There shall be paid out of the Fund such monies as are necessary for the development of common facilities for the distribution or testing of oil products and for matters relating to the development of oil industry as the Cabinet Secretary may direct:

Provided that the funds are not used for purposes in competition with the private sector.

The subsidy programme did not fall within the broad purposes of the Act, to wit, the development of common facilities for the distribution or testing of oil products and for matters relating to the development of oil industry, but because fuel prices had spiked so sharply because of the supply chain shocks caused by the global pandemic, few Kenyans were willing to push back on the Government’s decision.

So it beggars belief that another global supply shock that has occasioned a sharp spike in fuel prices has not motivated the Government to draw down from the Petroleum Development Fund to stabilize local petroleum pump prices. The situation may not be exactly the same - pandemic versus war - but the outcome is the same: high fuel prices. The fund exists. The power to draw down from the fund remains. The reluctance by the Government to do something meaningful is baffling. Unless, of course, the Fund is “empty”.

Kenya is a very strange place, from a statutory perspective. It has a plethora of tax laws that seem to affect the price of fuel, the most obvious being value added tax, excise duty, import declaration fee, road maintenance levy, and petroleum development levy. It has a byzantine system for importing petroleum products: anyone who can explain what the G-to-G system is and what it does and how it provides for predictable (and low prices) deserves an actual Nobel Memorial Prize in Economic Sciences.

Despite all that, and the shenanigans of the Energy and Petroleum Regulatory Authority, there is not predictable way of cushioning Kenyans from high fuel prices and the knock-on effects on the cost of living. Instead, we get haughty harangues from the Cabinet Secretary for the National Treasury and stoic silence from the Cabinet Secretary for Energy. We get snooty highfalutin screeds from the chairman of the President’s Council of Economic Advisors. We get spectacularly tone-deaf social media posts from pro-government “bloggers”. What we don’t get is any form of amelioration for our challenges.

And because the “united opposition” is composed of a deposed deputy president with he support of probably only his wife and immediate family, a perennially red-eyed doddering geriatric in charge of the “biggest opposition party”, the first serious woman presidential candidate long past her prime, an ex-CJ presidential candidate with the support of a thimbleful of GenZ activists, a narcissistic activist-senator who never seems to do any work in the Senate, an ex-VP with a massive chip on his puny shoulders, and an agglomeration of political wannabes and has-beens, amelioration will not be forthcoming any time soon. Many Kenyans now feel like Robert Baratheon on his death bed.